The ACLU is the leader in a combination of cases in the
California Supreme Court, seeking to overthrow the decision of the people to
define marriage as involving one man and one woman. The California Court
has already rejected the verdict of the people twice, as a law and then as
an initiative. If the Court now strikes a constitutional amendment as
unconstitutional, a revolt by the people against the court itself is a
likely outcome. It has been done before.
The facts for this article, but not all of the legal conclusions, come from
an article on the PowerLine blog, on 22 November, 2008. The title of this
article is, “The Plot Thickens in California.”
Since none of these articles have ever been based on a blog article, some
explanation of PowerLine is in order. It is written mostly by lawyers.
They have developed a reputation for accuracy in their legal and factual
research, and in breaking stories that the main stream media were avoiding
at the beginning. It is the work of reputable websites like PowerLine which
has made the Internet a more accurate source of information to many
citizens, than the main stream media.
As most readers are aware, the California Supreme Court has consolidated and
accepted for review several cases filed immediately after the results were
known on Proposition 8 in California. The cases were filed on differing
bases, but all sought the same result. They wanted the California Court to
throw out, once again, the actions of the people of California installing in
California law the definition of marriage as “between one man and one
The ACLU filed one of those cases, and is a prime supporter of the
consolidated case in the California Supreme Court.
The previous time the Court threw out the decision of the people, it was in
the form of a statute, which the Court said in a one-vote majority, was
unconstitutional. This time, in Proposition 8, the people wrote the
definition into the California Constitution, to put it beyond the reach of
As the article states, “if that court once again tells the voters ‘to go to
hell,’ … expect recall petitions to be circulated for the judges in
question.” .The assumption of the major media is that whenever the
California Supreme Court acts, for better or worse, that will be that.
This article points out that Californians have revolted against their
Supreme Court in the past, and that they have two ways of doing that again.
The simple way is to wait for the reconfirmation elections which all judges
in California face, and vote them out. The quicker way is to file petitions
to cause immediate recall elections of any members of the court who decide
to undercut the sovereignty of the people, one more time.
The example which proves that the California Court can push the people only
just so far, concerns the former Chief Justice, Rose Bird. After California
reestablished the death penalty for certain crimes, Chief Justice Bird and
two other Justices voted in 61 straight cases to overturn the death
penalties imposed by courts and juries below.
The people of California had had enough. They used their votes in a
reconfirmation election to remove Bird and her colleagues from office.
The basic issue, which readers of articles on the American Civil Rights
Union will recognize, is not restricted to the definition of marriage, nor
to California. Instead, in Jeffersonian terms, it is where does the
sovereign power rest in American governments at all levels. Does it belong
with the people? Or, does it belong to judges who have taken it away, and
claim it as their own?
This is the overriding question of government in the United States today.
The major media report nothing about this larger question, either because
they do not understand it, or because they do, but fear it. In any event,
the likely outcome is either that the California Supreme Court will look
over their shoulders at the people, remember Chief Justice Bird and her
removed colleagues, and vote to uphold Proposition 8. Or, the court will be
careless, and will strike Proposition 8.
If so, as this article suggests, we should expect a revolt at the ballot
box, in the second general election down the road, which will turn several
Justices of the Court into former Justices of the Court.
Source of this story on the Net: